OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

[2003] UKHL 24

1. The question of general public importance certified by the Court of Appeal in Northern Ireland (see [2001] NI 385, 392) as appropriate to be considered by the House in this case is:

"Whether it is necessary, if the requirement to provide a specimen of blood or urine has been duly made under article 18 of the [Road Traffic (Northern Ireland) Order 1995 (SI 1995/2994)] at a police station or a hospital, that the specimen be taken at a police station or hospital."

My noble and learned friend Lord Hutton has outlined the facts giving rise to this question and referred to the relevant legislation. He has also summarised the reasons given by the Court of Appeal for answering the question in the negative. I gratefully adopt and need not repeat this introduction to the problem.

2. On reading article 18(4) of the Order on its own, the view could well be taken that the specimen, whether of blood or urine, must be provided at the same place, whether a police station or a hospital, where the requirement to provide a specimen is (and must under article 18(4)) be made. In the ordinary course it would be natural to take the specimen, after such interval as is necessary to make arrangements for the taking of the specimen, and to do so in the same place. The paragraph does not expressly contemplate the making of the requirement in one place and the provision of the specimen in another. Paragraph (6) imposes a time limit of one hour on the provision of the second (qualifying) specimen of urine after the requirement is made, so no long interval of time is in any event permissible.

3. There is, however, an argument of construction which points the other way, as the Court of Appeal recognised. Whereas article 18(2) expressly regulates the place where the specimen is to be provided (as, in relation to preliminary breath tests, does article 17(3)), article 18(4) regulates the place where the requirement is to be made but does not expressly regulate where the sample is to be provided. The draftsman may have seen this as a matter of little moment, since a specimen of urine could be given at any private and convenient place and a medical practitioner could reasonably be relied on to take blood only in a place judged suitable for doing so.

4. The matter does not end there. In Butler v Easton [1970] RTR 109 a strong Queen's Bench Divisional Court (Lord Parker CJ, Ashworth and Cantley JJ), construing section 3(1) of the Road Safety Act 1967 (broadly similar in effect to article 18(4) of the Order), concluded that the requirement must be made and the specimen provided at the same police station. In that case the initial formalities, including the requirement to provide a specimen of blood, took place at one police station, but no doctor was available there and the suspect was taken to another police station where a specimen was given. He challenged his conviction on the ground that evidence of the specimen analysis was inadmissible because the specimen had been provided at a police station different from that at which the requirement had been made. The prosecutor contended that the place for the requirement was specified by the subsection but the place for provision of the specimen was wholly and entirely within the discretion of the police. The court recognised it as implicit in his argument that the specimen could be provided at a doctor's surgery, provided the requirement had been duly made at a police station or hospital. The court rejected the prosecutor's argument, held that evidence of the specimen analysis had been inadmissible for want of compliance with the statutory procedure and quashed the conviction. Shortly thereafter, on materially indistinguishable facts, the same issue arose in Scotland. The Sheriff-substitute followed Butler v Easton and acquitted. The High Court of Justiciary allowed an appeal by the prosecutor: Milne v M'Donald 1971 JC 40. Giving judgment the Lord Justice-General (Clyde) said (at page 42):

"In our opinion the requirement to provide a specimen for a laboratory test is something different from the actual providing of the specimen. Subsection (1) of section 3 deals with the former only, and not with the latter."

5. In Pascoe v Nicholson [1981] 1 WLR 1061, again on materially indistinguishable facts, although now with reference to section 9 of the Road Traffic Act 1972, the House was called upon to resolve this conflict of authority. It did so by holding that Butler v Easton had been wrongly decided and that Milne v M'Donald was to be preferred. Although Pascoe v Nicholson, like Butler v Easton and Milne v M'Donald, involved two police stations, the ratio of the decision cannot rest on that fact: if the relevant section does not regulate where the specimen (duly required) is to be provided, there is no ground for holding that it must be provided at a police station.

6. In the 20 years since Pascoe v Nicholson was decided, Parliament has had opportunities to reverse the effect of the decision had it wished. It has not done so. This may indicate that the problem which arose in that trio of cases and in the present case very rarely arises in practice. Or it may indicate parliamentary approval or acceptance of that decision. The latter inference perhaps gains some strength from section 57(3) of the Police Reform Act 2002, which amends section 15(4) of the English Road Traffic Offenders Act 1988 (matched by article 18(4) of the Road Traffic Offenders (Northern Ireland) Order 1996 (SI 1996/1320)) so as to provide that a specimen of blood shall be disregarded unless

"(a) it was taken from the accused with his consent and either -

(i) in a police station by a medical practitioner or a registered health care professional; or

(ii) elsewhere by a medical practitioner . . ."

The Explanatory Notes issued to accompany the Act suggest that the change of law intended was a widening of the class of those authorised to take blood specimens, not a widening of the places at which specimens might be taken. This amendment has not as yet been extended to Northern Ireland, but I think that "elsewhere by a medical practitioner" represents the law in both jurisdictions.

7. The Court of Appeal were in my view right to conclude that article 18(4) of the Order does not stipulate that a specimen, duly required at a police station, must be provided at the same police station or any police station. Like them, I would answer the certified question in the negative.

8. Before the House, Mr Dermot Fee QC for the appellant contended that the operative requirement for a specimen of blood, that to which the appellant responded, was made at the health centre, and so failed to comply with the statutory stipulation that the requirement be made at a police station or a hospital, the health centre being neither. I do not understand this point to have been raised before the Resident Magistrate, when no witnesses were called by either party. Nor does it appear to have been raised on appeal, where the judgment did not mention it and it formed no part of a certified question. I am for my part very reluctant to entertain it for the first time in the House.

9. The appellant does however have an agreed finding of fact that at the health centre to which he was transported the constable put to him the statutory requirement (which he had already put to him at the police station). This finding distinguishes the case from Butler v Easton, Milne v M'Donald and Pascoe v Nicholson, in each of which the constable put the requirement to the suspect at the first police station but is not reported to have repeated the requirement at the second. I have no doubt that a case could arise in which, because of a lapse of time or other circumstances, it could be argued that an earlier requirement had become spent or perhaps superseded by later events. But this could not plausibly be argued in this case. It appears from the evidence tendered to the Resident Magistrate that the constable put the requirement to the appellant shortly after 0200. The appellant having been wholly compliant, he was conveyed to the health centre, the requirement was repeated in the presence of the doctor and he again agreed to provide a specimen. The specimen was provided at 0215. This overall delay of 15 minutes was less than would often ensue if a doctor has to be summoned from his bed to attend a suspect at the police station, and I cannot accept either that a requirement so recently made at the police station should be held to have lost its potency or that the appellant should reap an adventitious advantage because the constable chose, unnecessarily but no doubt conscientiously, to repeat the requirement. I would accordingly reject this argument.

10. On the points which the Court of Appeal did not certify (as to whether the health centre was a hospital and whether, if the statutory procedure was not complied with, evidence of the specimen analysis was admissible) I am in complete agreement with the reasons and conclusion of Lord Hutton.

11. For these reasons the appeal must in my opinion be dismissed.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

12. I have had the opportunity of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hutton. I agree that for the reasons they give, with which I agree, this appeal should be dismissed.

LORD HOFFMANN

My Lords,

13. For the reasons given by the Lord Chief Justice, upon which I cannot improve, I would dismiss the appeal.

LORD HUTTON

My Lords,

14. The appellant, Michael Devine, was arrested by Constable Reid about 1.30 am on 27 October 1998 near Strabane, County Tyrone, on suspicion of having committed the offence of driving a motor car whilst unfit to drive through drink contrary to Article 15(1) of the Road Traffic (Northern Ireland) Order 1995 (SI 1995/2994). After his arrest the appellant was brought to Strabane police station where the proper custody procedure was initiated and the custody officer, Sergeant Carey, authorised his detention for the purpose of obtaining an evidential sample at 1.40 am.

15. Article 18 of the 1995 Order states the procedures to be followed by a constable in order to obtain a specimen of breath for analysis or a specimen of blood or urine for a laboratory test. The relevant paragraphs of Article 18 are the following:

"(1) In the course of an investigation into whether a person has committed an offence under Article 14, 15 or 16 a constable may, subject to the following provisions of this Article and Article 20, require him

(a) to provide 2 specimens of breath for analysis by means of a device of a type approved by the Head of the Department, or

(b) to provide a specimen of blood or urine for a laboratory test.

(2) A requirement under paragraph (1)(a) may be made to provide the specimens of breath

(a) at or in the vicinity of the place where the requirement is made if facilities for the specimens to be taken are available and it is practicable to take them there, or

(b) at a police station.

(3) A requirement under paragraph (1)(a) may be made only by a constable who is especially authorised by the Chief Constable to make such requirements.

(4) A requirement under paragraph (1)(b) to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless

. . . .

(b) at the time the requirement is made a device or a reliable device of the type mentioned in paragraph (1)(a) is not available at the police station or it is then for any other reason not practicable to use such a device there, or

. . . .

(5) If the provision of a specimen other than a specimen of breath may be required in pursuance of this Article the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine.

. . . .

(7) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this Article is guilty of an offence.

(8) A constable must, on requiring any person to provide a specimen in pursuance of this Article, warn him that a failure to provide it may render him liable to prosecution."

16. The principal issue which arises on this appeal is whether pursuant to Article 18(4) the specimen of blood must be provided at a police station or at a hospital, or whether there is compliance with paragraph (4) if the requirement to provide a specimen of blood is made by a constable at a police station or at a hospital but the specimen is provided at some other place.

17. What took place after the appellant had been detained in the police station is set out in the following paragraphs of the case stated by the Resident Magistrate for the opinion of the Court of Appeal:

"(d) At 0159 hours Constable Reid informed the Defendant that he would not be required to provide evidential breath specimens as there was no trained officer available at that time to operate the Evidential Breath Testing Device.

(e) At 0200 hours Constable Reid put to the Defendant the requirement under Article 18(1)(b) of the Road Traffic (Northern Ireland) Order 1995 to provide a specimen of blood. The defendant consented to do so, and does not now challenge the correctness of the procedure up to this point.

(f) At 0200 hours Sergeant Carey contacted Strabane Health Centre on Constable Reid's behalf and requested that a doctor attend the station to take a blood sample from the Defendant. At 0205 hours Doctor Thompson returned this call and informed Sergeant Carey that he would take a blood sample but requested that the Defendant be brought to the Health Centre for that purpose. This request by Doctor Thompson was solely to convenience himself as he was the only doctor on duty at the time. There were no medical reasons which necessitated the Defendant's attendance at the Health Centre.

(g) Constable Reid then transported the Defendant to Strabane Health Centre. In the presence of Doctor Peter Thompson Constable Reid again put the requirement to the Defendant to provide a specimen of blood for a laboratory test. Again the Defendant consented.

(h) At 0215 hours a specimen of blood was provided to Doctor Thompson. The Defendant was transported back to Strabane RUC Station and released from custody at 0232 hours.

(i) On the 27th day of October 1998 the specimen of blood was forwarded to the [Forensic Science Agency] for analysis."

18. On 3 March 2000 the appellant appeared before the Resident Magistrate, Mr Brian McElholm, sitting in Strabane Magistrates' Court, to answer a complaint that on 27 October 1998 he drove a mechanically propelled vehicle on a road or other public place when unfit to drive through drink or drugs, contrary to Article 15(1) of the Road Traffic (Northern Ireland) Order 1995. A certificate of analysis of the appellant's specimen of blood from the Forensic Science Agency was put in evidence by the prosecution. The certificate stated that the proportion of alcohol in the appellant's blood was found on analysis to be 156mg in 100 millilitres of blood which was 76mg in excess of the prescribed limit stated in Article 13 of the 1995 Order. The submission was advanced to the magistrate on behalf of the appellant that the Strabane Health Centre was not a hospital within the meaning of Article 13(2) of the 1995 Order, and that accordingly the specimen had not been properly taken, the certificate of analysis was not admissible in evidence and the appellant should not be convicted. The magistrate rejected this submission and held that the health centre was a hospital and ruled that the specimen had been properly taken in accordance with the requirements of Article 18(4). He found the case proved and convicted the appellant. He disqualified him from driving for 12 months, but gave him an absolute discharge on account of his clear driving record over many years.

19. The appellant appealed to the Court of Appeal and the questions of law stated for the opinion of the Court of Appeal were as follows:

"Whether the court was correct in ruling that the requirement put to the Defendant under Article 18(1)(b) of the Road Traffic (NI) Order 1995 to provide a specimen of blood was put within the terms of the said Order, insofar as it was put to him at a Health Centre?

Whether the court was correct in ruling that a Health Centre was a "hospital" as defined by Article 152A of the Road Traffic (NI) Order 1981, as amended?"

20. In their judgment delivered by Sir Robert Carswell LCJ the Court of Appeal held, contrary to the ruling of the magistrate, that the Strabane Health Centre was not a hospital within the meaning of Article 13(2) of the 1995 Order which defines a hospital as "an institution which provides medical or surgical treatment for in-patients or out-patients": see [2001] NI 385. Therefore the Court of Appeal thought it necessary to reformulate the questions of law set out in the case stated in the following terms:

"1. Whether I was correct in law in holding that a health centre was a 'hospital' within the meaning of art 13(2) of the Road Traffic (Northern Ireland) Order 1995.

2. Whether it is necessary, if the requirement to provide a specimen of blood or urine has been duly made under art 18 of the said Order at a police station or a hospital, that the specimen be taken at a police station or a hospital."

The Court of Appeal answered both questions in the negative, and the second question is the question certified by the court for the opinion of this House.

21. In holding that the Strabane Health Centre was not a hospital the Court of Appeal observed that there was no definition of a health centre in the 1995 Order and that there was no description of the Strabane Health Centre in the case stated. The court then stated, at p 390:

"We do not propose to attempt to formulate a canonical definition of a hospital, since the variants between hospitals are so considerable. We can, however, state with some confidence from judicial notice that a health centre which is the place from which a group of general practitioners carries on practice does not satisfy the definition in art 13(2) of the 1995 Order. It has no in-patient facility, no specialist medical or surgical staff; it is not open to all comers but its facilities are available only to patients registered with one of the doctors in the practice; and it was not set up as a unitary institution for the treatment of patients, but is a coalition of a group of general practitioners each with his or her own list of patients. Accordingly, when the sample of blood was taken from the appellant at the Strabane Health Centre it was not in our judgment taken from him at a hospital within the meaning of art 13(2) of the 1995 Order."

I consider that the court were clearly right so to hold and I would respectfully adopt their reasoning as my own.

22. The Court of Appeal stated their reasons for answering the second question in the negative, at pp 390-391:

"It was no doubt envisaged by the legislature that the specimen would ordinarily be taken at the place where the requirement is made, the police station or the hospital. It is not so provided in art 18, however, and it is not in our opinion an essential condition of validity that it should be taken in such a place, unless it is a necessary implication from the terms of art 18. In the case of a sample of breath it appears from art 18(2)(a) that the sample is to be taken at the place where the requirement is made. But in that paragraph the focus is on the place where the breath sample is to be taken, whereas in para (4) it is on the place where the requirement is to be made. The requirement can only be made at a police station if one of the conditions set out in art 18(4) is satisfied. It does not seem to us to follow necessarily from that provision that the specimen is to be taken there, once the matter has progressed as far as the making of the requirement. Unlike the making of the requirement, the actual taking of the specimen might sensibly be done anywhere, and there is not in our view any compelling reason why it should have to be done in a police station or hospital."

23. The court also referred to the decision of this House in Pascoe v Nicholson [1981] 1 WLR 1061 where it was held, under similar English legislation, that the requirement for a blood specimen can be made in one police station and the specimen provided at another. Lord Roskill, with whose speech the other members of the House agreed, stated, at p1067 A-B:

"I see no logical reason why in the absence of express statutory provision, the motorist should not, after being required to supply the specimen for a laboratory test immediately following any second breath test, be taken to another police station where a doctor is more easily available in order to take from him the specimen of blood. It is not difficult to visualise many parts of the United Kingdom where it might be extremely difficult to obtain the services of a doctor at some isolated police station."

However, as in that case the requirement was made in a police station and the specimen was provided in a police station I think that Lord Roskill's speech does not give guidance on the present issue.

24. My Lords, I consider that the words of Article 18(4), which are virtually identical to section 7(3) of the Road Traffic Act 1988, are open to two interpretations. There is the interpretation placed upon them by the Court of Appeal and there is the interpretation which is advanced by Mr Fee QC on behalf of the appellant. The latter interpretation is that it is a necessary implication from the words of Article 18(4) that when the requirement for a specimen of blood is made at a police station, the specimen must be provided in a police station or a hospital. At the close of the submissions I considered that there was considerable force in the appellant's argument. The taking of a specimen of blood is a more intrusive step than the making of the requirement for a specimen by a constable, and it appeared to me that Parliament, in approving the 1995 Order, would not have intended that the requirement must be made at a police station or at a hospital, without also intending that the specimen would be provided in such a place. In addition it appears to be clear from the wording of Article 18(2)(b) and (4)(b) that where the requirement is made at a police station for specimens of breath to be provided, the specimens must be provided at a police station, and I thought it probable that when Parliament required that the specimens of breath must be provided at a police station it intended that the more intrusive procedure of providing a specimen of blood would also be carried out in a police station or a hospital.

25. However, it is necessary to take into consideration section 57(3) of the Police Reform Act 2002 which has amended section 15(4) of the Road Traffic Offenders Act 1988, the wording of which was identical to the wording of Article 18(4) of the Road Traffic Offenders (Northern Ireland) Order 1996 (SI 1996/1320) and which subsection provided:

"A specimen of blood shall be disregarded unless it was taken from the accused with his consent by a medical practitioner."

Section 15(4) of the 1988 Act as amended by section 57(3) of the 2002 Act now reads:

"A specimen of blood shall be disregarded unless

(a) it was taken from the accused with his consent and either

(i) in a police station by a medical practitioner or a registered health care professional; or

(ii) elsewhere by a medical practitioner;

or

(b) it was taken from the accused by a medical practitioner under section 7A of the Road Traffic Act 1988 and the accused subsequently gave his permission for a laboratory test of the specimen."

26. Section 15(4)(a)(ii) states, in effect, that a specimen of blood may be taken by a doctor at a place other than a police station or a hospital. In my opinion section 57(3) was not intended to change the law and to remove a restriction as to where a doctor could take a specimen of blood but, rather, was enacted on the basis that under the existing section 7(3) of the Road Traffic Act 1988 a doctor could properly take a specimen of blood at a place other than a police station or a hospital. Therefore section 57(3) recognises that section 7(3) of the 1988 Act permits a specimen to be taken elsewhere than at a police station or a hospital, and as section 7(3) of the Road Traffic Act 1988, like Article 18(4) of the 1995 Order, is open to two interpretations it is permissible to consider section 57(3) of the subsequent enactment inpari materia to arrive at the proper construction of that earlier provision. In Northern Ireland the road traffic legislation is based on, and is virtually identical to, the equivalent English legislation. Therefore in the light of section 57(3) I consider that the Court of Appeal were right to hold that after a requirement for a specimen of blood had been made in the police station, the specimen might be taken elsewhere by a medical practitioner.